Sunday, January 15, 2012

Kahneman’s Thinking, Fast and Slow

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Everyone is reading Daniel Kahneman's "Thinking, Fast and Slow" (2011). A passage in a recent New Zealand Court of Appeal deci...
Friday, January 13, 2012

Admissibility of eyewitness identification evidence

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Just as I was sneaking back to the Southern Hemisphere the Supreme Court of the United States delivered its decision in Perry v New Hampshir...
Thursday, December 22, 2011

Extended secondary liability: assessing the risk

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" Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is ...
Tuesday, December 20, 2011

Fair trials without central witnesses

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It is possible for a trial to be fair without a central witness giving evidence in person and being cross-examined. The witness's eviden...
Sunday, December 18, 2011

Beyond the bounds of legal pragmatism

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When an orthodox application of the criteria for criminal responsibility does not meet the requirements of public policy, the law must chang...
Thursday, December 08, 2011

The strength of vagueness

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Two vague but fundamental concepts The first vague concept: abuse of process Complicity by Australian officials in the unlawful deportat...
Tuesday, December 06, 2011

Equality before the law, parity of sentence

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Some general points on disparity of sentence can be gleaned from Green v R; Quinn v R [ 2011] HCA 49 (6 December 2011). The case needs to ...
Thursday, November 24, 2011

Obviousness and obfuscation

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Civil proof of offending It should be obvious that proving something to the civil standard does not undermine failure to prove it to the c...
Tuesday, November 22, 2011

Conviction appeals – burdens and risks

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How sensitive should an appellate court be to the risk that an error at trial was sufficient to require the quashing of a conviction and the...
Tuesday, November 15, 2011

When our hair was black

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In the course of considering the alleged naivety of Jonathan Sumption (UKSC blog 9 November 2011) I reached for my copy of "Equality...
Sunday, November 13, 2011

Informer privilege

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Both the state and a police informer may have an interest in keeping confidential the identity of the informer. But such confidentiality is ...
Thursday, November 03, 2011

NZSCBlog

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[Update: the "NZSC blog" seems to have disappeared. I imagine that students are under too much pressure to produce quality beyond ...
Tuesday, November 01, 2011

What’s the word for ...?

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Procedural fairness aims at facilitating substantive fairness. Sometimes procedural rights are so close to the right to a fair trial that th...
Thursday, October 27, 2011

Voices of reason

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Thanks are due to UKSCBlog for drawing our attention to video interviews with some of the Justices, published by the Guardian .

We simply don’t do that

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Acceptance of a bribe can occur after the performance of an act beneficial to the payer and without any expectation of payment when the act ...

Deflecting the jury from its fundamental task

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"The instructions which a trial judge gives to a jury must not, whether by way of legal direction or judicial comment on the facts, def...

Omission? What omission?

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For discussion of liability for omissions under the law of the Commonwealth of Australia, see Commonwealth Director of Public Prosecutions v...

Some errors of law in judicial fact finding

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For a reminder of the kinds of things that can be errors of law arising out of a trial judge's treatment of the evidence, see R v J.M.H....

That decision (maple) tree again

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If evidence was wrongfully obtained, what is the relevance to its admissibility that it could have been obtained lawfully? Sometimes failu...
Friday, October 21, 2011

Previous acquittals as propensity evidence

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In Fenemor v R [ 2011] NZSC 12 7, the Supreme Court declined to establish a rule excluding, as propensity evidence, evidence of facts on wh...
Saturday, October 08, 2011

Fruit of the poisoned tree

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When may evidence obtained 'downstream' from improperly obtained evidence be admissible? By downstream I mean that the finding of th...